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Recent documents in Digital Commons @ Boston College Law Schoolen-usWed, 21 Feb 2018 01:36:43 PST3600Coding with the Building Blocks of the Webhttp://lawdigitalcommons.bc.edu/lsfp/1114
http://lawdigitalcommons.bc.edu/lsfp/1114Thu, 08 Feb 2018 08:32:37 PSTNick SzydlowskiTransparency and Disclosurehttp://lawdigitalcommons.bc.edu/lsfp/1113
http://lawdigitalcommons.bc.edu/lsfp/1113Fri, 02 Feb 2018 07:34:25 PST
Without a stable and adequate tax base, countries lose the financial capacity to provide the infrastructure, social services and development opportunities important to their citizens. In response, the G20 and the Organisation for Economic Co-operation and Development (OECD) organized the project on Base Erosion and Profit Shifting (BEPS). Much of the project has been focused on substantive law — the rules and practices that can allow the tax base of a country to be eroded and profits to be shifted out of the country. But the project recognizes that improved substantive tax rules alone are not sufficient to guarantee the tax base of a country. Without adequate transparency and disclosure of tax information to the taxing authorities, even the most carefully designed substantive tax rules will fail to protect the base. This chapter explores both the existing mechanisms for transparency and disclosure, and the new developments including country-by-country reporting, automatic exchange of information, beneficial ownership registries, and government exchanges. The primary focus of the analysis is understanding how these various regimes may impact developing countries.
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Diane RingCybersecurity and Tax Information: A Vicious Cycle?http://lawdigitalcommons.bc.edu/lsfp/1112
http://lawdigitalcommons.bc.edu/lsfp/1112Fri, 02 Feb 2018 07:34:21 PST
A review of Michael Hatfield, Cybersecurity and Tax Reform, 93 Ind. L.J., scheduled to be published in Spring 2018.
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Diane RingBrief of Amici Curiae Finance Regulation Scholars in Support of Plaintiff's Motion for a Preliminary Injunction in <em>English v. Trump</em>http://lawdigitalcommons.bc.edu/lsfp/1111
http://lawdigitalcommons.bc.edu/lsfp/1111Fri, 02 Feb 2018 07:34:18 PST
Professor McCoy was the lead author of an amicus brief in support of the lawsuit by CFPB Deputy Director Leandra English against the Trump Administration, asserting that she lawfully became the Acting Director of the Consumer Financial Protection Bureau under the Dodd-Frank Act.
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Patricia A. McCoyThe Absurdity of Crime-Based Deportationhttp://lawdigitalcommons.bc.edu/lsfp/1110
http://lawdigitalcommons.bc.edu/lsfp/1110Fri, 02 Feb 2018 07:34:14 PST
The belief that immigrants are crossing the border, in the stealth of night, with nefarious desires to bring violence, crime, and drugs to the United States has long been part of the public imagination. Studies and statistics overwhelmingly establish the falsehood of this rhetoric. The facts are that non-citizens commit fewer crimes and reoffend less often than citizens. But facts do not stop the myth. Even supporters of immigration reform often will point out that they will help deserving immigrants but will deport the undeserving ones, particularly those with criminal convictions, and especially those who committed violent crimes.

Despite the new administration’s call to deport up to three million criminals, my Article counters that there will be — and should be — an end to crime-based deportation. It is already happening quickly and quietly in federal courts. Beginning in 2013, the Supreme Court decided United States v. Descamps, and in 2016, Mathis v. United States. These cases are highly technical decisions relating to the federal Armed Career Criminal Act (“ACCA”) and immigration law’s Illegal Immigration and Immigrant Responsibility Act (“IIRIRA”).

This Article draws upon empirical data to show that, as predicted by the Justices, a faithful adherence to Descamps and Mathis will eliminate numerous offenses from having ACCA and IIRIRA consequences on a case-by-case, statute-by-statute basis.

As a normative matter, I contend that this result is the proper one. Prosecutors, judges, and policy makers are embracing this reality in the ACCA context. The same result should be embraced in the immigration context. IIRIRA’s reliance on convictions to serve as immigration violations is too arbitrary, too expensive, and simply out of proportion to how the criminal courts considered the seriousness (or lack thereof) of the crime. Instead, Congress must repeal IIRIRA and return to a system whereby criminal offenders were subjected to individualized assessments. Those who made more contributions to the country stayed, and those who did not, left. The experiment of presuming that a conviction is a marker of character has failed. Immigration law must return to grading crimes by their actual seriousness instead of assuming that categories of crimes adequately sort out who should or should not remain.

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Kari E. HongBrief of Amici Curiae Corporate Law Professors in <em>Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission</em>http://lawdigitalcommons.bc.edu/lsfp/1109
http://lawdigitalcommons.bc.edu/lsfp/1109Fri, 02 Feb 2018 07:34:10 PST
Professor Greenfield was the principal author of an amicus brief on behalf of 33 corporate law professors in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued in December 2017. The brief argues that shareholders’ religious and political beliefs should not be projected onto a corporation for purposes of First Amendment accommodation.
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Harold Kent Greenfield et al.The Federal Anti-Corruption Enterprise After <em>McDonnell</em>: Lessons from the Symposiumhttp://lawdigitalcommons.bc.edu/lsfp/1108
http://lawdigitalcommons.bc.edu/lsfp/1108Fri, 02 Feb 2018 07:34:07 PST
This article was presented at the Penn State Law Review's Symposium, Breach of the Public (Dis)Trust. The article examines the potential impact of the Supreme Court's unanimous decision in McDonnell v. United States. The analysis first focuses on a narrow reading of McDonnell, treating it as part of the Court's general approach to issues of statutory construction. However, there is a possible broader reading of McDonnell, which has the potential to be highly significant as applied to anticorruption prosecutions, federalism concerns, and the "criminalization of politics" critique. After examining a broader view of McDonnell, the article delves into whether the case is indicative of broader themes in the treatment of corruption, or potential corruption, in both the electoral and governance contexts. Next the article will analyze the surprisingly small amount of academic commentary on McDonnell, despite media interest, as well as the initial judicial interpretations and applications of the decision. The article concludes with a review of the many helpful contributions made at the Symposium, reflecting a diversity of views about McDonnell. These views are an extremely helpful starting point for grappling with the decision's uncertainties.
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George D. BrownFrom Dog-Whistle to Megaphone: The Trump Regime’s Cynical Assault on Affirmative Actionhttp://lawdigitalcommons.bc.edu/lsfp/1107
http://lawdigitalcommons.bc.edu/lsfp/1107Fri, 02 Feb 2018 07:34:04 PSTMark S. BrodinAn Electrifying Expansion of Judicial Review of Agency Actions in <em>PSEG Energy Resources & Trade LLC</em>http://lawdigitalcommons.bc.edu/ealr/vol44/iss3/5
http://lawdigitalcommons.bc.edu/ealr/vol44/iss3/5Mon, 29 Jan 2018 11:17:57 PST
The Federal Energy Regulatory Commission (“FERC”) issues orders on electricity market auction results to ensure that electricity rates are just and reasonable. FERC issued an order accepting the results of the 2008 ISO New England forward capacity auction. PSEG Energy Resources (“PSEG”), a participant in the auction, challenged the order on the grounds that it resulted in undue discrimination for the most necessary resources for reliability and violated the basic market policy goals. When FERC rejected this challenge, PSEG petitioned for review of the FERC order. The United States Court of Appeals for the D.C. Circuit reviewed the FERC order under a two-step Chevron U.S.A. v. Natural Resources Defense Council-like analysis and the agency’s failure to respond to public comments under the Administrative Procedure Act’s arbitrary and capricious standard. This Comment argues that in PSEG Energy Resources & Trade LLC v. Federal Energy Regulatory Commission, the D.C. Circuit’s review of the FERC order represents an expansion of judicial review of administrative action.
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Anna NikolayevaConnecticut’s Evolving Views of Riparian Rights and the Public Trusthttp://lawdigitalcommons.bc.edu/ealr/vol44/iss3/4
http://lawdigitalcommons.bc.edu/ealr/vol44/iss3/4Mon, 29 Jan 2018 11:17:53 PSTWaterbury v. Washington came to the Connecticut Supreme Court as a dispute over water rights that could have been resolved via a number of statutory or common law doctrines. Instead, the court sought to articulate a uniform theory of riparian law in Connecticut, acknowledging all of these competing doctrines. This uniform theory was one of regulated riparianism. After articulating this standard, the court left many decisions to be worked out by lower courts. Since Waterbury was decided, those lower courts have struggled to incorporate a view that reconciles the public trust doctrine in light of Connecticut’s statutory scheme. Many of these struggles will need resolution before important public trust questions in Connecticut can be approached with a sense of certainty.
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Terence H. McAllisterTechnical Fouls: Adjudicating Statutory Violations with Equitable Resolutionshttp://lawdigitalcommons.bc.edu/ealr/vol44/iss3/3
http://lawdigitalcommons.bc.edu/ealr/vol44/iss3/3Mon, 29 Jan 2018 11:17:49 PST
In Weinberger v. Romero-Barcelo, the United States Supreme Court allowed for an equitable resolution to a lawsuit seeking immediate enforcement, by injunction, of the Federal Water Pollution Control Act (“FWPCA”). In this case, the United States Navy violated the FWPCA by discharging munitions—a pollutant as defined by the statute—during training exercises into the waters surrounding the Island of Vieques. The Navy also failed to obtain a National Pollution Discharge Elimination System permit, which would have made the discharge lawful under the statute. The people of Puerto Rico sought to enjoin the training exercises through the FWPCA. The Navy’s actions, however, had no adverse effects on the area’s waters or the environment. Thus, the Court viewed the violation as only technical and allowed for an equitable resolution to an otherwise valid violation of a statute. This Comment argues that the Supreme Court’s holding was correct in allowing an equitable resolution to a technical violation of a statute.
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Antonio G. FraoneThe Administrative Procedure Act and How the “Final Rule” Designation Allows Agencies to Perpetuate Harm by Failing to Acthttp://lawdigitalcommons.bc.edu/ealr/vol44/iss3/2
http://lawdigitalcommons.bc.edu/ealr/vol44/iss3/2Mon, 29 Jan 2018 11:17:46 PST
In order to preserve the historic authenticity of Alexander Hamilton’s only home, concerned citizens, community groups, and the National Park Service (NPS) created a plan to move Hamilton’s Home. The Friends of Hamilton Grange (“Friends”) were created to assist the NPS in that process. The Friends never filed official paperwork to become an official “friends group” of the NPS. After years of planning, the NPS approved plans for Hamilton’s home that conflicted with the interests of the Friends. The Friends claimed that the NPS did not properly consult with them throughout the planning process and the undeveloped land where Hamilton’s home once stood would attract crime, inflicting injury on the local community. The Friend’s filed suit under the Administrative Procedures Act (APA) and the National Historic Preservation Act (“NHPA”) requesting injunctive relief, but the court ruled that the Friends lacked of standing under both the NHPA and the APA.
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Julia EatonFront Matterhttp://lawdigitalcommons.bc.edu/ealr/vol44/iss3/1
http://lawdigitalcommons.bc.edu/ealr/vol44/iss3/1Mon, 29 Jan 2018 11:17:42 PSTBoston College Environmental Affairs Law ReviewRemaking Making: Integrating Self-Replicating Technologies with the Exhaustion Doctrinehttp://lawdigitalcommons.bc.edu/bclr/vol59/iss1/10
http://lawdigitalcommons.bc.edu/bclr/vol59/iss1/10Thu, 25 Jan 2018 12:46:33 PST
Self-replicating technologies such as genetically modified organisms have unquestionably improved the farming industry. In order to ensure continued innovation in this area, the law has increasingly established protections for this technology. Although the exhaustion doctrine serves as a limit to a patent holder’s rights, the application of the current patent infringement regime may be over-inclusive as self-replicating technologies continue to advance. This Note identifies Bowman v. Monsanto as a recent example of how self-replicating patented products could lead to blanket infringement liability, including for innocent infringers. This Note recommends that the definition of “making” be redefined to include only those who knowingly reproduce a patented article. This new, more precise definition of “making” will improve the modern patent infringement framework and successfully integrate self-replicating technologies into the current exhaustion doctrine.
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Adanna Uwazurike“Warning: Use May Result in Cruel and Unusual Punishment”: How Administrative Law and Adequate Warning Labels Can Bring About the Demise of Lethal Injectionhttp://lawdigitalcommons.bc.edu/bclr/vol59/iss1/9
http://lawdigitalcommons.bc.edu/bclr/vol59/iss1/9Thu, 25 Jan 2018 12:46:30 PST
Lethal injection, although currently the preferred method of execution in the United States, causes more botched executions than any other method. Despite recorded instances of extreme pain and suffering, the United States Food and Drug Administration (“FDA”) does not regulate lethal injection drugs for safety and effectiveness because their use occurs “off-label” and thus outside of the purview of the FDA’s regulatory scope. Challengers to the FDA’s lack of regulation have thus far been unsuccessful in the courts due to the deference that the courts give to agency decisions. This Note discusses the ways in which administrative law can be used to bring about the demise of lethal injection. Existing FDA regulations require warning labels when a specific use of a drug causes harm. This Note proposes that concerned parties should file a citizen’s petition under Administrative Procedure Act § 553(e) to compel the FDA to require drug manufacturers to update the labels to warn of the harms of using the drugs for execution. These warning labels can then be used to support Eighth Amendment challenges to the constitutionality of lethal injection.
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Julia EatonThe Price Tag on Designer Babies: Market Share Liabilityhttp://lawdigitalcommons.bc.edu/bclr/vol59/iss1/8
http://lawdigitalcommons.bc.edu/bclr/vol59/iss1/8Thu, 25 Jan 2018 12:46:27 PST
The prospect of genetically modifying humans has loomed over the public for decades. Now, science fiction is becoming reality. New technology and expanding research are positioned to make genetic alteration a routine, pre-conception appointment. For several years, China has been experimenting with germline editing on non-viable human embryos. In April 2016, the UK also approved a group of scientists to begin similar research. In the United States, genetic engineering is a multibillion-dollar industry. Although ethical debates over human genetic modification have checked the industry, the potential for clinical trials has become a reality as companies race to dominate the technology. In light of the potential impact of problematic genetic alterations on future generations, the harm inflicted on victims parallels the Diethylstilbestrol cases of the 1980s, signaling a re-emergence of market share liability.
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Boston College Law Review StaffPlaying a Man Down: Professional Sports and Stadium Finance—How Leagues and Franchises Extract Favorable Terms from American Citieshttp://lawdigitalcommons.bc.edu/bclr/vol59/iss1/7
http://lawdigitalcommons.bc.edu/bclr/vol59/iss1/7Thu, 25 Jan 2018 12:46:25 PST
In an era of unprecedented profitability, expansion, and popularity of American professional sports leagues, it seems outrageous that cities and municipalities across the United States would continue to subsidize the funding of new stadiums for wealthy sports franchises. Yet despite the economic obstacles facing many of these cities and municipalities, the gratuitous public funding of stadiums across the United States persists. This reality stems from the extraordinary bargaining power that professional sports franchises maintain over the cities in which they are located. Indeed, threating to relocate a franchise brings forth a litany of cities that are ready and willing to offer favorable terms to fund a new stadium. Legislative efforts to restrict stadium finance have paradoxically forced municipalities into even less favorable stadium deals that relied on public tax dollars while other efforts to reform stadium financing have failed to gain traction among municipal governments and federal lawmakers. This Note evaluates the various methods of stadium financing by discussing the private and public sources of funding. This Note goes on to evaluate the application of the public purpose doctrine in restricting the issuance of public finance. Finally, this Note explores potential solutions to the challenges that face municipalities when it comes to stadium financing.
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Nicholas BakerThe Federal Equity Powerhttp://lawdigitalcommons.bc.edu/bclr/vol59/iss1/6
http://lawdigitalcommons.bc.edu/bclr/vol59/iss1/6Thu, 25 Jan 2018 12:46:22 PST
Throughout the first century and a half of our nation’s history, federal courts treated equity as a type of general law. They applied a uniform, freestanding body of principles derived from the English Court of Chancery to all equitable issues that came before them, regardless of whether a case arose under federal or state law. In 1945, in Guaranty Trust Co. v. York, the United States Supreme Court held that, notwithstanding the changes wrought by the Erie Doctrine, federal courts may continue to rely on these traditional principles of equity to determine the availability of equitable relief, such as injunctions, even in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. Equity should not be understood as a single, independent body of principles that a federal court must apply in all cases that come before it. Rather, a federal court’s power to impose an equitable remedy stems, if at all, from the legal authority that establishes the underlying right. For state-law claims, a federal court must apply state statutes and precedents—not uniform, centrally devised federal standards—to determine the availability of equitable relief. The manner in which state-created rights are protected is as much a matter of substantive state policy as a state’s initial creation and allocation of those rights. When adjudicating a federal statutory claim, the underlying federal statute itself governs the availability of equitable relief; a federal court may presume Congress intended that traditional equitable principles apply as a matter of statutory interpretation, unless the statute’s text or legislative history contains a clear statement to the contrary. Finally, for constitutional claims, federal courts may apply traditional equitable principles as a matter of constitutional common law, unless Congress displaces them with a valid alternative remedial scheme.
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Michael T. MorleyNon-Enforcement Takingshttp://lawdigitalcommons.bc.edu/bclr/vol59/iss1/5
http://lawdigitalcommons.bc.edu/bclr/vol59/iss1/5Thu, 25 Jan 2018 12:46:19 PST
The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to the Takings Clause’s constitutional remedy. Rather, it simply suggests that courts should resist the temptation to formulaically and categorically prohibit non-enforcement takings claims in favor of assessing those claims on the merits.
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Timothy M. MulvaneyThe Architecture of Contract Innovationhttp://lawdigitalcommons.bc.edu/bclr/vol59/iss1/4
http://lawdigitalcommons.bc.edu/bclr/vol59/iss1/4Thu, 25 Jan 2018 12:46:17 PST
Contract law and the formal models of contract economics assume that agreements are fully customized. On the other hand, recent legal research highlights the role standardized terms play in contract design. Those lines of research overlook an important class of contracts between those extremes. Many contracts, such as the merger agreements studied here, are complex combinations of customized and standardized terms, and thereby achieve economies of both scale and scope. Such contracts are “mass customized,” to borrow a term from engineering research. This Article introduces a theoretical framework for understanding how mass customization of such complex agreements is achieved. It adds to recent scholarship that applies modularity theory to the design of complex agreements by introducing an alternative approach—flexible specialization. It then introduces empirical methods for studying the structure of complex agreements. Using hand-collected data from samples of public company merger agreements and of the teams of deal lawyers that designed them, this Article presents the results of a preliminary empirical study that finds that the architecture of mass customized contracts reflects the logic of flexible specialization rather than modular design. The picture of contract design that emerges is of agreements built upon a flexible architecture provided by a dynamic cluster of experts, more similar to the industrial districts of Emilia-Romagna in Italy than Ford Motor Company’s fabled Highland Park assembly line. Those preliminary results suggest important implications for doctrine, policy, and research. In regard to doctrine, this Article adds a missing dimension to recent attempts to articulate a non-unitary theory of U.S. contract law. With respect to policy, evidence that flexible specialization underpins the infrastructure of the mergers and acquisitions (M&A) market challenges deterministic accounts of the legal industry’s transformation, and illuminates the overlooked trade-offs presented by recent arguments to further standardize complex contracting. Finally, in regard to research, this Article provides a basis for much needed theoretical and empirical work on the interaction effects between governance mechanisms within an agreement.
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Matthew Jennejohn